attribution- state responsibility

8/18/2019 Attribution- State Responsibility

1/44

InDretREVISTA PARA EL WWW. INDRET.COM

ANÁLISIS DEL DERECHO

BARCELONA, ENERO 2015

The attribution of international

responsibility to a State for conductof private individuals within the

territory of another State

Elena Laura Álvarez OrtegaTrabajo de Final de Grado en Derecho (Curso 2013-2014)

Facultad de DerechoUniversitat Pompeu Fabra


2/44

InDret 1/2015 Elena Laura Álvarez Ortega

Abstract 1

The issue of the attribution of international responsibility to States for conduct of a group of individuals within

the territory of another State has become a question of control. International jurisprudence has addressed this

question by advancing several different control tests that allegedly better resolve the attribution question. The

ICJ put forward two control tests in the Nicaragua case, the so-called strict control or agency test and theeffective control test. The Appeals Chamber of the ICTY found it unpersuasive and used instead what named

the overall control test. Moreover, the ECtHR has developed yet another test: the effective overall control test.

These control tests will be set out explaining the different rationales that argue for and against their adoption

and it will be seen that they show a tension between the need for what has been called “real accountability” of

States and the attribution of responsibility to States only for their own conduct. It will be argued that while

accountability is an important purpose, especially when dealing with international humanitarian law, it is

necessary to ensure that States are only held responsible for conduct with which there is a sufficient close link

so as to be considered its own.

Título: la atribución de responsabilidad internacional a un Estado por la conducta de particulares en el territorio de

otro Estado

Keywords: international responsibility of States, attribution of conduct to a State, the strict control test, the effective

control test, the overall control test, the effective overall control test

Palabras clave: responsabilidad internacional del Estado, atribución de conducta a un Estado, test del control estricto,

test del control efectivo, test de control general, test de control general efectivo

1This Paper was initially submitted as my End of Degree Project. I would like to sincerely thank Professor Ángel José

Rodrigo Hernández for his task tutoring it, for all his valuable guidance and support.


3/44


Summary

1. Introduction

2. The attribution of international responsibility to a state

2.1 The ILC Articles on Responsibility of States for Internationally Wrongful Acts

2.2 The issue of Attribution of Conduct to a State: articles 4 to 112.3 Attribution of responsibility as a question of control: different standards

3. The control tests put forward by the International Court of Justice

3.1. Military and Paramilitary Activities in and against Nicaragua case

a) The so-called “strict control test” or “agency test”

b) The effective control test

3.2. Armed Activities on the Territory of the Congo case

a) Non-attribution to the DRC of the attacks by the ADF

b) Non-attribution to Uganda of MLC’s conduct and its engagement of international

responsibility

3.3. Case concerning the application of the Convention on the Prevention and Punishment ofthe Crime of Genocide

a) The question of attribution of the Srebrenica Genocide to the Respondent on the basis of

the conduct of its organs

b) The question of attribution of the Srebrenica Genocide to the Respondent on the basis of

direction or control

c) The rejection of the tests advanced by the ICTY Appeals Chamber

d) The question of responsibility, in respect of Srebrenica, for acts of Article III, paragraphs

(b) to (e), of the Genocide Convention

e) The question of responsibility for Breach of the Obligations to Prevent and Punish

Genocide4. The control tests proposed by the ICTY

4.1. Prosecutor v Tádic case

a) The Prosecution position in regards to the Nicaragua test

b) The Appeals Chamber rejection of the Nicaragua test

c) Three tests in general international law: specifically, the overall control test

d) International humanitarian law as a lex especialis?

5. The control test advanced by the European Court of Human Rights

5.1. Loizidou v Turkey: effective overall control test

5.2. Behrami and Saramati: ultimate authority and control test

6. The rationales behind the different control tests6.1. The will of ensuring real accountability of States

6.2. The need of limiting attribution only to State’s own conduct

6.3. Responsibility for inciting or failing to prevent a third’s conduct

7. Conclusions

7.1. The tendency in international jurisprudence

7.2. The preferable control test


4/44


8. Cases

9. Bibliography


5/44

Elena Laura Álvarez Ortega

1. Introduction

This paper deals with the attribution to States of international responsibility for the conduct ofprivate individuals within the territory of another State. The reason for choosing this issue as thesubject of my paper is that, as some scholars have pointed out, this has become a paradigmatic

instance of fragmentation in public international law2. Different international tribunals haveadvanced their own control tests in order to answer the question of attribution to a State of theconduct of private individuals in the territory of another State. Hence, this is an issue that keepsevolving as different cases reach the tribunals and which has an important practical dimension in aglobalised world in which States have many different ways to influence groups placed in distantterritories. The most relevant point is appreciating how the different control tests advanced by theinternational tribunals respond to different principles that underlie the law of State responsibility:they show a tension between the will of preventing States avoiding responsibility by acting throughnon-official individuals and the principle of holding States responsible only for their own conduct.However, since States are legal entities always need to act through persons and the determination ofwhen someone’s conduct can be regarded as an act of the State is a normative decision3

which needsto take into account the principles that lie behind this area of public international law.

For the writing of this paper I read the leading cases of the different international tribunals whichhave advanced their own tests, set out the main lines of their reasoning and elaborated on therationales for putting forward one test or another. Later I contrasted them and, taking into accountthe principles for favouring each and some scholars opinions about them, I share my view on whichtest should be preferred. I defend that the strict control test and the effective control test put forward bythe ICJ are to be preferred since are the ones which best guarantee that a State is only held

responsible for acts with which there is enough connection as to be considered their own. Moreover,I consider this does not involve allowing States avoiding responsibility by acting through non-officials because, even if attribution of a private group’s conduct is denied, the State can still be heldaccountable for its own conduct in relation to the group.

2. The attribution of international responsibility to a State

This essay deals specifically with the attribution to States of international responsibility for theconduct of private individuals within the territory of another State. This issue has turned into a

question of control4

2 In this sense see: TALMON (2009) p. 496: “the test of control of authorities and military forces of secessionist entities

has become perhaps the most cited examples of “the fragmentation of international law”.

with the International Court of Justice (hereafter, ICJ), the International Tribunal

3 See CRAWFORD (2002) p. 83.4 See TALMON (2009) p. 496: “the question of whether or not an act of a secessionist enity can be attributed to an

outside power thus becomes a question of how one defines “control”.


6/44


2

for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian LawCommitted in the Territory of the Former Yugoslavia (hereafter, ICTY) and the European Court ofHuman Rights (hereafter, ECtHR) advancing different control tests responding to different levels ofstringency in order to solve the attribution issue of the conduct to the State.

First of all, it is important to recall that the reference text in this area is the International LawCommission’s Articles on Responsibility of States for Internationally Wrongful Acts (2001)5. TheInternational Law Commission (hereinafter, ILC) recommended the General Assembly of the UnitedNations to take note of the Articles- the drafting of which had lasted for forty years- and to annexthem in a General Assembly Resolution, with the possibility of later converting them into aconvention. This second step has not been taken and no convention has been adopted. Therefore, theILC Articles are not binding law as such but, despite their nature, they are an essential piece in thearea of State responsibility for internationally wrongful acts and to a large extent they codifyinternational law6

.

2.1 The ILC Articles on Responsibility of States for Internationally Wrongful Acts

The ILC Articles on Responsibility of States for Internationally Wrongful Acts, as their own nameexpresses, deal only with the international responsibility of States. They do not regulate theinternational responsibility of international organisations, as article 57 makes clear7 or other entitiesdifferent that States. Moreover, they do not affect or replace individual responsibility underinternational law of any person acting on behalf of the State, as article 58 points out. These articlesonly deal with the international responsibility of a State that flows from an internationally wrongful

act and not from permitted activities which have potentially dangerous consequences in case ofaccident8

.

To adequately define the scope of the ILC Articles it is important to stress that these articles aresecondary rules in so far as they only conform a general set of rules that regulates the conditions forinternational responsibility to arise, its content and consequences but do not rule on when a specific

5 The International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (2001) will be

subsequently referred merely as the “ILC Articles”.

6 See TALMON (2009) pg. 495: claims that the ILC Articles “are widely considered to reflect customary international

law”.

7 The international responsibility of international organisations is specifically dealt with by the ILC Draft Articles on

the Responsibility of International Organisations (2009).

8 On this topic, it is rellevant to notice the ILC Draft Principles on the allocation of loss in the case of transboundary harm

arising out of hazardous activities (2006).


7/44


3

obligation binding on a State has been violated- this is a matter for the primary rules as substantiverules. They set a frame of secondary rules which apply in case of any breach of an internationalobligation by a State, without ruling on the characteristics or substance of that primary obligationwhich is violated. In Crawford’s words: “the law relating to the content and the duration ofsubstantive State obligations is as determined by primary rules. The law of State responsibility as

articulated in the Draft Articles provides the framework – those rules, denominated –secondary–,which indicate the consequences of a breach of an applicable primary obligation”9

.

The ILC Articles are structured into Four Parts. Part One deals with the notion of InternationallyWrongful Act of a State. Part Two deals with the Content of International Responsibility of a State.Part Three deals with the Implementation of the International Responsibility of a State, and Part Foursets out some General Provisions. This essay deals with the topic of attribution and therefore it willfocus on Part One, Chapter II, which sets out the rules for the Attribution of Conduct to a State.However, a brief reference will be now made to the General Principles of Chapter I, so as to have ageneral view of the notion of “internationally wrongful act”, the elements it comprises and theconsequences it generates.

Article 1 sets out the essential principle that “every internationally wrongful act of a State entails theinternational responsibility of that State”. An internationally wrongful act is an expression thatcovers both actions and omissions and the wrongfulness or otherwise of such conduct is to be judgedaccording to the requirements of the allegedly violated obligation. The production of a wrongful actentails the emergence of a new set of legal relations which are referred to as “internationalresponsibility”. These relations may be between the responsible State and one or several injuredStates, or the international community as a whole, depending on the nature of the breached

obligation. The content of this new set of legal relations is the object of regulation by these articles.

Article 2 sets out the two elements of an internationally wrongful act: (a) the conduct (action oromission) which is attributable to the State under international law and (b) constitutes a breach of aninternational obligation of the State. The issue of attribution is a “necessarily normative operation”10 since the State cannot act by itself and attribution consists on considering certain conduct asbelonging to the State. The rules of attribution will be set out in the next section but now it isimportant to point out that while certain scholars have identified attribution with a “subjective”element, the ILC Articles do not use this contrast between subjective and objective elements.Crawford has pointed out that “whether responsibility is “objective” or “subjective” in this sense

depends on the circumstances, including the content of the primary obligation in question. Thearticles lay down no general rule in that regard”11

9 CRAWFORD (2002) p. 16.

. It is also relevant to recall that the State as a

10 CRAWFORD (2002) p. 83.

11 CRAWFORD (2002) p. 82.


8/44


4

subject of international law is treated as a unity and is a single subject of attribution of conduct,regardless of who would be the responsible organ under internal law. The LaGrand case made thispoint clear, with the ICJ asserting the international responsibility of the United States for an actwhich was within the competence of the Governor of Arizona.

Article 3 makes clear that the characterisation of an act as internationally wrongful is a question forinternational law which cannot be affected by the characterisation as lawful under the internal law ofthe State. This principle is well-established and has been repeatedly asserted in many judicial andarbitral procedures. Internal law may be relevant for that determination but “in such cases it isinternational law which determines the scope and limits of any reference to internal law”12

.

2.2 The issue of Attribution of Conduct to a State: articles 4 to 11

The focus will now be placed on analysing the rules of attribution, which are set out in articles 4 to

11. These are taken to “reflect existing customary international law”13. Attribution, as mentionedabove, is a normative operation, which means that it responds to the application of rules whichdetermine when there is a sufficiently close link between a certain conduct and a State so as toconsider that conduct as an “act of the State”. These rules respond to normative criteria and notmerely to a factual relation, since the State as a legal person cannot act by itself but through humanbeings, and it is for international law to determine when an act can or cannot be attributed to a State:“the attribution of conduct to the State as a subject of international law is based on criteriadetermined by international law and not on the mere recognition of a link of factual causality”14.Articles 4 to 11 are taken to be a numerus clausus and, except in cases where a lex especialis is

applicable (as foreseen in Article 55) attribution of conduct to a State can only be based on one (orseveral) of the grounds of Part One, Chapter II15

.

Article 4 establishes a basic rule of attribution of conduct of any of its organs to the State. Here theunity principle applies and it is irrelevant the level or the functions that the organ has. It includes allorgans, being irrelevant their hierarchical position, irrespectively of whether they exercise legislative,executive, judicial or other functions and whether they are part of the central government or anautonomous territorial unit. Paragraph 2 of this article says that “an organ includes any person orentity which has that status in accordance with the internal law of the State”. In his commentaries,

12 CRAWFORD (2002) p. 89.

13 DIXON (2007) p. 247.

14 CRAWFORD (2002) p. 91.

15 CRAWFORD (2002) p. 93.


9/44


5

Crawford points out that the term “includes” implies that the classification of an entity as an organcannot be limited to those which have that condition under internal law because that status may beexercised in practice without being recognised in the internal law of the State and “a State cannotavoid responsibility for the conduct of a body which does in truth act as one of its organs merely bydenying it that status under internal law”16. Dixon also claims that “it is also clear that a person or

group or entity may be equated with an organ of the State even if it does not have that statusofficially under internal law”17

. International tribunals have advanced several tests for determiningwhen a group of persons can be considered as a de facto organ and therefore its conduct can beattributed to the State. This issue has turned into a matter of control over the group and will beanalysed in the next sections.

The organs’ conduct is attributable when they are acting in their official capacity, not as merelyprivate persons, and even if they exceed their competence or contravene instructions (as clarified byarticle 7) but it may be difficult to distinguish in practice between an ultra vires act carried out underthe official capacity of the organ and a private act, not attributable to the State. For attribution to bepossible it is only needed that the organ is acting “in an apparently official capacity or under colourof authority”18

.

Article 5 attributes to the State the conduct of a person or entity which, not being an organ of theState, is empowered by its internal law to exercise elements of governmental authority, provided thatthe entity is acting in that capacity. This article responds to the phenomenon of privatisation offormerly public functions and seeks to prevent States escaping responsibility by delegating functionswhich involve the exercise of authority to entities which are not legally recognized as State organs.These entities engage the responsibility of the State even if they are autonomous and they have

discretion to exercise the authority as long as the conduct in question was an exercise of the elementsof authority which the internal law empowers them to carry out. In contrast with article 8, here it isnot necessary to prove the existence of control over the entity since the link with the State for theattribution operation is the empowerment by the internal law to the entity to exercise that element ofgovernmental authority.

Article 6 deals with the specific situation of the attribution of conduct of an organ placed at thedisposal of a State by another State: the conduct has to be attributed to the former State if the organ isexercising elements of authority of the State at whose disposal it is been situated.

Article 7 clarifies that the conduct of an organ of a State or a person empowered to exercise elementsof authority are to be attributed to the State if they act in that capacity, even if they exceed their

16 CRAWFORD (2002) p. 98

17 DIXON (2007) p. 248

18 CRAWFORD (2002) p. 99


10/44


6

authority or contravene instructions. The State is responsible for ultra vires acts of its organs orentities empowered to exercise its authority as long as they have acted under that official capacity,being irrelevant whether the excess “was manifest or undiscoverable”19

- all that is relevant is that theact was done in their official capacity and not acting as a private person. Any other position wouldallow the State to invoke its internal law to escape from the attribution of international responsibility.

Article 8 deals with the attribution of conduct of a private person or group to the State on the basisthat they are “in fact acting on the instructions of, or under the direction or control of, that State incarrying out the conduct”. This article attributes conduct on the basis of instructions or control.Therefore, attribution is not based on a legal relationship between the actors and the State but on thebasis of a factual link: conduct following the State’s instructions or under its direction or control.These situations are consequently an exception to the general principle that acts of private personsare not to be attributed to the State. It is foreseen in order to prevent a State escaping responsibilityfor conduct which it instructs or controls. In regard to the issuance of instructions there may bepractical difficulties of evidence but the concept is quite clear. On the other hand, the direction andcontrol requirement needs further specification, which has been given by jurisprudence, withdifferent international tribunals advancing several different control tests to resolve this attributionissue. The definition of the required degree of control is the central issue of this essay and it will beset out in the next sections.

Article 9 attributes to the State the conduct of a person or group if they are in fact exercising elementsof governmental authority in the absence or default of the official authorities and in circumstancesthat call for that exercise.

Article 10 deals with the conduct of an insurrectional or other movement. If the insurrectionalmovement becomes the new government of the State its conduct will be considered an act of stateunder international law. The conduct of a movement which establishes a new State in part of theterritory will be considered an act of that new State. Therefore, if the movement does not succeed inbecoming the government or creating a new State the conduct will not be attributed to the State butto the persons who constitute the movement. However, the State may still have responsibility for itsown conduct in relation to the acts of the movement, which may be subsumed in any of the othergrounds for the attribution of conduct to the State, for instance for failing to prevent, to minimise thedisruptive effects, or to punish the movement’s conduct if it was able to do so.

Article 11 establishes that if the State acknowledges and adopts a conduct which is not attributable toit on the basis of the previous provisions, then that conduct will be attributable to it to the extent ofthat acknowledgment and adoption.

19 DIXON (2007) p. 248


11/44


7

2.3 Attribution of responsibility as a question of control: different standards

From now on this essay will focus on a specific controversial issue within the operation of attribution

of conduct to a State: on the requirements for attributing to a State the acts of a private group carriedout in the territory of another State.

The conduct of a private group that acts in a State can be attributed to another State by consideringthe group an organ of that latter State, and therefore all the conduct in that capacity will bepotentially attributable; or by proving that the group was in fact acting on the instructions of thelatter State or under its direction and control, case in which those specific acts will be attributable tothe directing State. Both, the equation with an organ, and the direction and control of specificoperations of a private group have become a question of control 20

. The degrees of control for bothgrounds of attribution are different between them, and they also differ depending on the case lawexamined, with different control tests advanced by the ICJ, the ICTY and the ECtHR. The followingsections set out the leading cases in which these international tribunals have set forward their controltests and compare the different standards of control they involve. Finally, they will be contrastedtaking into consideration the different rationales that lie behind them and a preference among themwill be favoured.

3. The control tests put forward by the International Court of Justice

The International Court of Justice (hereafter, the ICJ) has set forward two control tests21

in order todetermine whether the acts of groups of individuals within the territory of a State can be attributedto another State. The leading case is Military and Paramilitary Activities in and against Nicaragua22

20

See TALMON

( 2009) p. 496

,which was questioned by the Appeals Chamber of the ICTY. The ICJ maintained its position in two

21 TALMON ( 2009) p. 497: points out that “the literature and decisions of other international courts, with very few

exceptions, refer only to one test in connection with the ICJ- the –effective control– test. The ICJ, however, has in fact

applied two different tests”.

22 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment,I.C.J. Reports (1986) p. 14 (hereafter, Nicaragua v USA).


12/44


8

subsequent important cases which will be examined: the Armed Activities case23 and the GenocideConvention case24

.

3.1. Military and Paramilitary Activities in and against Nicaragua case

In Nicaragua v USA the Court had to decide, among other issues, whether to upheld Nicaragua’sclaim that the United States had “devised the strategy and directed the tactics of the contra force, andprovided direct combat support for its military operations”25. The ICJ said that it was not satisfiedthat all the operations of the contras followed a strategy and tactics set by the United States but theCourt considered that “the financial support given by the Government of the United States to themilitary and paramilitary activities of the contras in Nicaragua is a fully established fact”26. The ICJasserted that taking into account the evidence, it was not satisfied that the United States had createdthe contras nor that it provided “direct and critical combat support” to them but “holds it establishedthat the United States authorities largely financed, trained, equipped, armed and organized theFDN”27

.

a) The so-called “strict control test” or “agency test”

The ICJ first analysed what later on has been called the “strict control test” or “agency test”: theCourt enquired itself “whether or not the relationship of the contras to the United States Governmentwas so much one of dependence on the one side and control on the other that it would be right toequate the contras, for legal purposes, with an organ of the United States Government, or as actingon behalf of that Government”28. The Court relied on the assessment of the Intelligence Committee of

May 1983 to establish that the unique factor of control that the United States could exert was the“cessation of aid”29 and concluded, a sensu contrario, that there was a “potential for control inherent inthe degree of the contras’ dependence on aid”30

23 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J Reports (2005)

p. 168 (hereafter, Armed Activities case).

.

24 Application of the Convention on the prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbiaand Montenegro), Judgment, I.C.J. Reports (2007 ) p. 43 (hereafter, Genocide Convention case).

25

Nicaragua v USA (para 102).

26 Nicaragua v USA (para 107).





13/44


9

In spite of this finding the Court concluded that “there is no clear evidence of the United Stateshaving actually exercised such a degree of control in all fields as to justify treating the contras asacting on its behalf”31. The ICJ considered that the assistance of the United States to the contras hadbeen crucial “but it is insufficient to demonstrate their complete dependence on the United States

aid”32

.

Therefore, the so called “strict control test” or “agency test” developed by the ICJ to equate a groupof individuals with an organ of a State requires a relationship of dependence and control to thedegree that it can be qualified as “complete dependence” on the State. Dependence and control canbe considered two correlative elements33: the group is dependent in the extent to which it iscontrolled by the State34

, and that dependence and control must be “complete”. The ICJ analyses theelements of control the State has and that control requirement has to be proved at two levels: thepotential for control and the actual exercise of control. Moreover, that actual exercise of control mustextent to “all fields” of the group’s activity.

The ICJ accepted that during the initial periods of contra activities they were so dependent but toclaim that the United States directed the strategy and tactics “depends on the extent to which theUnited States made use of the potential for control inherent in that dependence”35 and the Courtconsidered insufficient the evidence so as to decide on that actual exercise of control. Thus, the ICJconcluded that the contras could not be equated with an organ of the United States for legalpurposes. This denial led the Court to reject Nicaragua’s claim which attributed responsibility to theUnited States for all the activities of the contras, which Nicaragua regards as “essentially the acts ofthe United States”36

.

Hence, the control test used by the ICJ to decide whether a group can be equated with a State organ(what would be tantamount to characterising them as a de facto organ of the United States), or be




33

See (TALMON

( 2009) p.498): he argues that “dependence and control are thus two sides of the same coin”.

34 See (TALMON ( 2009) p. 497): “control results from dependence or, looking at it from the other side, dependence

creates the potential for control”.




14/44


10

considered to be acting on its behalf, is a highly demanding one in terms of evidence. It requiresproving the complete dependence37

of the group, which in turn involves complete control of theState over it, and the examining of the element of control involves assessing the potential for controland also the actual exertion of that capacity of control “in all fields” of activity of the group. Theserequirements are very demanding and it is very difficult for an applicant State to provide enough

evidence to the Court to satisfy this high threshold. On the other hand, this demanding threshold ofevidence ensures that the equation of a group with an organ of a State is only carried out in cases inwhich there is a firm basis supported by enough evidence so as to attribute the State acts of privateindividuals, which must be exceptional, taking into account that the general principle is that Statesare only responsible for their own conduct and that equation with a State organ involves the holdingof responsibility also for ultra vires acts, according to Article 7 of the ILC Articles.

b) The effective control test

Having denied the equation of the contras with an organ of the United States, there were still issuesof responsibility to decide upon38. The United States may still have been held responsible for singleacts over which it had control or had given instructions, or it still may have been held responsible forcomplicity or for inciting the commitment of any such acts39

.

The ICJ asserted that “even the general control by the respondent State over a force with a highdegree of dependence on it, would not in themselves mean, without further evidence, that theUnited States directed or enforced the perpetration of acts contrary to human rights andhumanitarian law alleged [...] Such acts could well be committed by members of the contras without

the control of the United States. For this conduct to give rise to legal responsibility of the UnitedStates, it would in principle have to be proved that that State had effective control of the military orparamilitary operations in the course of which the alleged violations were committed”40

.

Therefore, the denial of the equation of the contras with an organ of the United States led the Courtto deny the responsibility of the United States for all its acts, responsibility which arises whendealing with State organs even in relation to ultra vires acts. Precisely due to the negation of their

37 See (TALMON (2009) p. 499) for a definition of complete dependence : “complete dependence means that the

secessionist entity is “lacking any real autonomy” and is “merely an instrument” or “agent” of the outside power

through which the latter is acting [...] Common objectives may make the secessionist entity an ally, albeit a highlydependent ally, of the outside power, but not necessarily its organ”.

38 See (TALMON (2009) p. 502) for an assertion of the subsidiary character of the “effective control” test.

39 Nicaragua v USA (para 114 a contrario, since it denies that these issues would arise in case the contras were equated

with an organ of the United States).



15/44


11

characterisation as a de facto organ, there lacks the necessary link for all their acts to be attributable tothe State. The ICJ asserted the general principle that “the contras remain responsible for their acts,and that the United States is not responsible for the acts of the contras, but for its own conduct vis-à-vis Nicaragua, including conduct related to the acts of the contras”41

. Consequently, after havingdenied the equation of the contras with an organ ( id est, after the application of the so-called “strict

control test” or “agency test”) which would have involved to a wider scope for internationalresponsibility, the ICJ applied the effective control test, which involves holding a State responsible onlyfor the acts of a group over which the State had effective control, and this responsibility was deniedin this case for lack of evidence.

Providing evidence of control over specific operations of a group involves proving the instructions,command or particular instances of State control over the acts in question, access to which is reallydifficult, since public demonstrations to that effect are unlikely to be done.

Consequently, the effective control test, while more limited in the scope of responsibility engaged andmore limited in the sense of evidence required (particular instances of control), remains a demandingtest42 since a general degree of control or dependence of the group is not enough but the applicantState needs to provide evidence of control in relation to the specific acts at issue43

(in this case,violations of human rights and humanitarian law) over which responsibility seeks to be attributed tothe respondent State.

The United States was held responsible for its own conduct in relation to the contras: “by training,arming, equipping, financing and supplying the contra forces or otherwise encouraging, supportingand aiding military and paramilitary activities in and against Nicaragua, has acted, against the

Republic of Nicaragua, in breach of its obligation under customary international law not to intervenein the affairs of another State”44. The ICJ also held: “and further by those acts of intervention [...]which involve the use of force, has acted, against the Republic of Nicaragua, in breach of itsobligation under customary international law not to use force against another State”45


. The UnitedStates was also held responsible for its own conduct for producing a manual (“Operacionessicológicas en Guerra de guerrillas”) and spreading it among the contras, what was regarded ashaving “encouraged the commission by them of acts contrary to general principles of humanitarian

42

(TALMON

(2009) p. 503) considers that “while the burden of proof for the –effective control– test is lower than thatfor the “strict control” test, in practice it will be extremely difficult to establish ”.

43 (TALMON (2009) p. 502) “the object of control is no longer the secessionist entity but the activities or operations

giving rise to the internationally wrongful act”.

44 Nicaragua v USA (holding, para 3).



16/44


12

law; but does not find a basis for concluding that any such acts which may have been committed areimputable to the United States of America as acts of the United States of America”46

.

3.2. Armed Activities on the Territory of the Congo case

The ICJ in the Armed Activities case also had to decide on the attribution to the State parties of armedactivities carried out by groups of rebels. Among the many claims put forward by the DemocraticRepublic of the Congo (hereafter, DRC) one was that the Court declared “that the Republic ofUganda, by engaging in military and paramilitary activities against the Democratic Republic of theCongo, by occupying its territory and by actively extending military, logistic, economic and financialsupport to irregular forces operating there, has violated the following principles of conventional andcustomary law [...]”47 . On the other hand, Uganda claimed that its deployment of soldiers in theterritory of the DRC was justified as self-defence for it alleged that the DRC “provided military andlogistical support to anti-Ugandan insurgents”48

.

a) Non-attribution to the DRC of the attacks by the ADF

Uganda claimed that “there was a tripartite conspiracy in 1998 between the DRC, the ADF and theSudan; that the Sudan provided military assistance to the DRC’s army and to anti-Ugandan rebelgroups”49. The ICJ considered “that it has not been presented with evidence that can safely be reliedon in a court of law to prove that there was an agreement between the DRC and the Sudan toparticipate in or support military action against Uganda”50. The ICJ focused on the claim that theattacks by the ADF51


had increased due to the support allegedly provided by the DRC. Uganda justified its actions as self-defence due to the claimed DRC collaboration with the rebel groups butthe evidence provided to satisfy the ICJ of this alleged assistance was not found convincing by theCourt, which asserted that “these may all be described as internal documents, often with noauthenticating features, and containing unsigned, unauthenticated and sometimes illegible witnessstatements. These do not have the quality or character to satisfy the Court as to the matters

47 Armed Activities case (para 24).




51 Abbreviation used by the ICJ to refer to the Allied Democratic Forces, a rebel anti-Ugandan group.


17/44


13

claimed”52. Therefore, the ICJ concluded that “there is no satisfactory proof of the involvement inthese attacks, direct or indirect, of the Government of the DRC. The attacks did not emanate fromarmed bands or irregulars sent by the DRC or on behalf of the DRC, within the sense of Article 3 (g)of the General Assembly resolution 3314 (XXIX) on the definition of aggression [...] The Court is ofthe view that, on the evidence before it, even if this series of deplorable attacks could be regarded as

cumulative in character, they still remain non-attributable to the DRC”53

.

b) Non-attribution to Uganda of MLC’s conduct and its engagement of international responsibility

The DRC claimed before the ICJ that “Uganda both created and controlled the MLC rebel group ledby Mr. Bemba”54. Uganda recognised assistance to the MLC “while insisting that its assistance to Mr.Bemba –was always limited and heavily conditioned–. Uganda has explained that it gave “justenough” military support to the MLC to help Uganda achieve its objectives”55

.

The ICJ reached the conclusion “that there is no credible evidence to suggest that Uganda created theMLC. Uganda has acknowledged giving training and military support and there is evidence to thateffect. The court has not received probative evidence that Uganda controlled or could control themanner in which Mr. Bemba put such assistance to use. In the view of the Court, the conduct of theMLC was not that of –an organ– of Uganda (article 4, International Law Commission Draft Articleson Responsibility of States for internationally wrongful acts, 2001), nor that of an entity exercisingelements of governmental authority on its behalf (Art. 5). The Court has considered whether theMLC’s conduct was –on the instructions of, or under the direction or control of– Uganda (Art. 8) andfinds that there is no probative evidence by reference to which it has been persuaded that this was

the case”56

.

This means that the ICJ rejected equating the MLC with an organ of Uganda or with a para-statalentity, as well as denied the engagement of its responsibility on the basis of issuance of instructionsor control. The ICJ considered that “Accordingly, no issue arises in the present case as to whether therequisite tests are met for sufficiency of control of paramilitaries”57


and cited Nicaragua v USA whenmentioning the control tests, which would be applied in case that the ICJ considered that the

53

Armed Activities case (para 146).

54 Armed Activities case (para 155). The ICJ uses the abbreviation MLC to refer to the Congo Liberation Movement.


56 Armed Activites case (para 160).



18/44


14

situation was such as to call for their application in order to decide whether the paramilitaries couldbe equated with State organs or acted under the control of the Respondent. Since the ICJ denied thatthere was enough evidence to consider any of these scenarios in this case, the Court did not evenenter to apply the control tests to the facts.

Despite this non -attribution of the MLC’s conduct to Uganda, the ICJ claimed that the training andassistance provided by Uganda engaged its international responsibility for violating the internationallaw prohibitions of intervention and of use of force as well as constituting a violation of thesovereignty and territorial integrity of the DRC58

.

3.3. Case concerning the Application of the Convention on the Prevention and Punishment of the

Crime of Genocide

In the Genocide Convention case the ICJ had to decide on the claim by Bosnia and Herzegovina

against Serbia and Montenegro which affirmed that the Respondent State “under the guise ofprotecting the Serb population of Bosnia and Herzegovina, in fact conceived and shared with themthe vision of a –Greater Serbia–, in pursuit of which it gave its support to those persons and groupsresponsible for the activities which allegedly constitute the genocidal acts complained of”59. The ICJconsidered as established that the Respondent was “making considerable military and financialsupport available to the Republika Srpska, and had it withdrawn that support, this would havegreatly constrained the options that were available to the Republika Srpska authorities”60. The Courtonly considered proved the dolus specialis (necessary for the atrocities at issue to constitute genocide)in relation to the massacres at Srebrenica in July 1995 and, in that regard concluded “that acts of

genocide were committed in operations led by members of the VRS, the Court now turns to thequestion whether those acts are attributable to the Respondent”61

. The ICJ first dealt with the issue ofattribution of the Genocide at Srebrenica to Serbia and Montenegro (at the time named FederalRepublic of Yugoslavia, hereafter FRY) on the basis of different rules of international responsibilityof States for internationally wrongful acts (basically articles 4 and 8 of the ILC Articles), thenanalysed whether the Respondent could be held responsible for acts within Article III, paragraphs (b)to (e), and finally if the Respondent had failed to fulfil its obligation to prevent and punish genocide.

58 See Armed Activites case, para 165.

59 Genocide Convention case (para 237).




19/44


15

a) The question of attribution of the Srebrenica Genocide to the Respondent on the basis of theconduct of its organs

The ICJ first analysed the attribution of the Genocide at Srebrenica to Serbia and Montenegro on thebasis of article 4 ILC Articles: whether the acts were carried out by organs of the Respondent. The

Court first examined whether the acts were committed by persons or entities which had that status(of organs) of the FRY according to its internal law and answered that question in the negative. TheICJ pointed out that “neither the Republika Srpska, nor the VRS were de jure organs of the FRY,since none of them had the status of organ of that State under its internal law ”62. Having denied thatthe genocide were committed by de jure organs of the FRY, the ICJ analysed the Applicant’sallegation according to which the Republika Srpska, the VRS and paramilitary groups such as the“Scorpions” had to be considered as de facto organs of the FRY, so that all their acts in that capacitywould be attributable to the FRY. The ICJ refered to Nicaragua v USA as leading case regarding theattribution of responsibility to a State for acts of groups which “in fact act under such strict controlby the State that they must be treated as its organs”63. The Court reproduced the relevant paragraphsof Nicaragua v USA (see above paragraph 2.1.a.). The ICJ claimed that Nicaragua v USA shows that theICJ jurisprudence allows the equation of groups with State organs irrespective of not having thatstatus under internal law since “any other solution would allow States to escape responsibility bychoosing to act through persons or entities whose supposed independence would be purelyfictitious”64. However, the ICJ recalled the exceptional nature of this equation and denied it in thepresent case for considering that “neither the Republika Srpska nor the VRS could be regarded asmere instruments through which the FRY was acting, and as lacking any real autonomy”65

. TheCourt took the view that they had a margin of independence.

b) The question of attribution of the Srebrenica Genocide to the Respondent on the basis of directionor control

After having denied the claim that the genocide was committed by de jure or de facto organs of theFRY, the ICJ assessed whether it was committed by persons (who despite not being organs of theFRY) whose acts were attributable to the FRY on the basis of article 8 ILC Articles: for acting on theinstructions or under the direction or control of the Respondent. The ICJ underlined that this is a“completely separate issue” from the question of equation with organs of the FRY, since answeringpositively to this question would not involve an equation with State organs but “would merely mean






20/44


16

that the FRY’s international responsibility would be incurred owing to the conduct of those of itsown organs which gave the instructions or exercised the control resulting in the commission of actsin breach of its international obligations”66

.

The Court examined article 8 of ILC Articles taking into account Nicaragua v USA, reproducing the

relevant paragraphs of that case (see above paragraph 2.1.b.) in which the Court put forward theeffective control test over specific operations of the group in order to determine whether the Statecould be held responsible for acts committed during those operations. The ICJ pointed out that theeffective control test differs from the strict control test in two regards: now there is no need to showthat the group who committed the wrongful acts was in a relation of “complete dependence” to theState but that it acted under its instructions or its effective control, which must be exercised inrelation to the specific acts at stake and “not generally in respect of the overall actions taken”67 .Moreover, the ICJ addressed the Applicant’s claim that due to the “particular nature” of the crime ofgenocide, in the sense of being composed by a lot of specific acts that are separate but coordinated,the effective control test should be analysed not in relation to the specific acts but to the wholeoperations. The Court rejected this claim by asserting that “the particular characteristics of genocidedo not justify the Court in departing from the criterion elaborated [...] The rules for attributingalleged internationally wrongful conduct to a State do not vary with the nature of the wrongful act inquestion in the absence of a clearly expressed lex especialis”68

.

c) The rejection of the tests advanced by the ICTY Appeals Chamber

In this case, the ICJ also addressed the Applicant’s questioning of the validity of applying the test

proposed in Nicaragua v USA. The Applicant referred to the ICTY Appeals Chamber departure of theICJ jurisprudence in the Prosecutor v Tádic case (analysed below, in 3.1) by applying their own test: the“overall control test”, which was applied to characterise the conflict as international and also toattribute the Bosnian Serbs’ acts to the FRY, and was regarded as satisfied in that case.

The ICJ asserted that it “has given careful consideration to the Appeals Chamber’s reasoning [...] butfinds unable to subscribe to the Chamber’s view”69


. The Court claimed that it is not logicallynecessary to use the same test to decide both issues and that “insofar as the –overall control– test isemployed to determine whether or not an armed conflict is international, which was the solequestion which the Appeals Chamber was called upon to decide, it may well be that the test is





21/44


17

applicable and suitable [...] the ICTY presented the “overall control” test as equally applicable to thelaw of State responsibility for the purpose of determining [...] when a State is responsible for actscommitted by paramilitary units, armed forces which are not among its official organs. In thiscontext, the argument in favour of that test is unpersuasive”70

.

The ICJ rejected the application of the overall control test in the context of attribution of acts whendealing with State responsibility for considering that “the –overall control– test has the majordrawback of broadening the scope of State responsibility well beyond the fundamental principlegoverning the law of international responsibility: a State is responsible only for its own conduct [...]the “overall control” test is unsuitable, for it stretches too far, almost to breaking point, theconnection which must exist between the conduct of a State’s organs and its internationalresponsibility”71

.

Therefore, the ICJ analysed the attribution of responsibility on the basis of article 8 of the ILC Articlesapplying the effective control test developed in Nicaragua v USA and concluded that, taking into

consideration the evidence, it had not been proved that the massacres were committed following theinstructions or under the direction or effective control of the Respondent State. Consequently, theacts of genocide could not be attributed to the FRY neither under article 4 nor under article 8 of theILC Articles, which were regarded as the only applicable rules among the section of Attribution ofconduct to a State (articles 4 to 11)72

of the ILC Articles.

d) The question of responsibility, in respect of Srebrenica, for acts of Article III, paragraphs (b) to (e),of the Genocide Convention

The ICJ, after having rejected the attribution to Serbia and Montenegro of the acts of genocide,assessed whether its responsibility could be engaged on the basis of one of the acts enumerated inArticle III: conspiracy to commit genocide (paragraph b), direct and public incitement to commitgenocide (paragraph c), and complicity in the commission of genocide (paragraph e)73

70

Genocide Convention case (para 404).

. The Courtasserted that it was clear from the facts that conspiracy and incitement did not apply in this casesince it had not been proved that organs of the FRY or persons acting under its instructions oreffective control committed acts of conspiracy or incitement. The ICJ focused on analysing what it


72 See Genocide Convention case (para 414) for the reasoning denying the applicability to this case of other Articles of

Chapter II, Part One of the ILC Articles for not matching the facts of this case with the circumstances foreseen in the

rest of provisions regarding attribution.

73 Paragraph d, which refers to attempt to commit genocide is not analysed because there was no claim regarding it.


22/44


18

regarded as a “more delicate question”74

: whether the FRY could be held responsible for complicityin genocide within paragraph (e).

The ICJ made some preliminary remarks regarding the nature of complicity: in international law itdoes not refer to the issuance of instructions to the perpetrators of the acts, for if that were the case

the acts would be attributable to the State (under Article 8 ILC Articles). The Court considered thatcomplicity “includes the provision of means to enable or facilitate the commission of the crime”75 and the ICJ considered it to be similar “to a category found among the customary rules constitutingthe law of state responsibility, that of the –aid or assistance– furnished by one State for thecommission of a wrongful act by another State”76. Reference was made to article 16 of the ILCArticles, which was taken to reflect custom. For asserting complicity, the Court considered itnecessary that the accomplice should at least have acted knowingly, aware of the dolus specialis of theperpetrator and “is not convinced by the evidence furnished by the Applicant that the aboveconditions were met [...] because it is not established beyond any doubt in the argument between theParties whether the authorities of the FRY supplied- and continued to supply- the VRS leaders whodecided upon and carried out those acts of genocide with their aid and assistance, at a time whenthose authorities were clearly aware that genocide was about to take place or was under way”77

. Therefore, the ICJ concluded that the Respondent could not be held internationally responsible forcomplicity in the commission of genocide.

e) The question of responsibility for Breach of the Obligations to Prevent and Punish Genocide

The Court also dealt with whether the Respondent fulfilled its obligations under Article I of the

Genocide Convention to prevent and to punish genocide. The Court underlined that these are twodistinct legal obligations. The ICJ first assessed the fulfilment of the obligation to prevent genocidepointing out that they were not aiming to establish a general jurisprudence in relation to obligationsof States to prevent certain conducts and that the Court “will therefore confine itself to determiningthe specific scope of the duty to prevent in the Genocide Convention ”78

.







23/44


19

The ICJ pointed out that “it is clear that the obligation in question is one of conduct and not one ofresult”79 which consists in the duty “to employ all means reasonably available to them, so as toprevent genocide so far as possible. A State does not incur responsibility simply because the desiredresult is not achieved; responsibility is however incurred if the State manifestly failed to take allmeasures to prevent genocide which were within its power, [...] In this area the notion of –due

diligence–, which calls for an assessment in concreto, is of critical importance”80

.

The Court also clarified the distinction of this duty with complicity: “while complicity results fromcommission, violation of the obligation to prevent results from omission”81 and that while incomplicity the State organs need to be aware that genocide was about to be committed or currentlyhappening, “by contrast, a State may be found to have violated its obligation to prevent even thoughit had no certainty, at the time when it should have acted, but failed to do so, that genocide wasabout to be committed or was under way;[...] it is enough that the State was aware, or shouldnormally have been aware, of the serious danger that acts of genocide would be committed”82. TheICJ considered that the FRY authorities “could hardly have been unaware of the serious risk of itonce the VRS forces had decided to occupy the Srebrenica enclave”83. The ICJ claimed that theRespondent had not proved to have taken any action to prevent the massacres and concluded “thatthe Respondent violated its obligation to prevent the Srebrenica genocide in such a manner as toengage its international responsibility”84

.

The ICJ examined the obligation to punish genocide, focusing on the obligation to co-operate withthe “international penal tribunal as may have jurisdiction with respect to those Contracting Partieswhich shall have accepted its jurisdiction”85

. The ICJ asserted that the ICTY is to be regarded an“international penal tribunal” within the meaning of Article VI and that the Respondent must be

deemed as having accepted its jurisdiction. In the light of the facts, the ICJ concluded that theRespondent had not co-operated with the ICTY, and had therefore breached its obligation to punishgenocide.



81

Genocide Convention case (para 432).




85 Article VI of the Genocide Convention.


24/44


20

In sum, the ICJ considered that “the Respondent failed to comply both with its obligation to preventand its obligation to punish genocide deriving from the Convention, and that its internationalresponsibility is thereby engaged”86

.

4. The control tests proposed by the ICTY

Now the focus will be put on a case by the Appeals Chamber of the International Tribunal for theProsecution of Persons Responsible for Serious Violations of International Humanitarian LawCommitted in the Territory of the former Yugoslavia since 1991 (hereafter, ICTY).

4.1. Prosecutor v Tádic case

In the Prosecutor v Tádic case87, the Appeals Chamber of the ICTY had to determine, among otherissues, whether the conflict between Bosnia and Herzegovina and the FRY, which was clearlyinternational before the 19 May 1992, also had that nature afterwards in order to determine theapplicability of the grave breaches regime of the Geneva Conventions. For this purpose, they had todetermine “whether the Bosnian Serb Forces- in whose hands the Bosnian victims in this case foundthemselves- could be considered as de iure or de facto organs of a foreign Power, namely the FRY”88

.

The Court first analysed international humanitarian law (hereafter, IHL) and the criteria for beingconsidered a lawful combatant, and “considers that the Third Geneva Convention, by providing inArticle 4 the requirement of “belonging to a Party to the conflict”, implicitly refers to a test of

control”89

. After underlining that IHL “is a realistic body of law, grounded on the notion ofeffectiveness [...] holds accountable not only for those having formal positions of authority but alsothose who wield de facto power as well as those who exercise control over perpetrators of seriousviolations of international humanitarian law”90. The Court focused on the need to “specify whatdegree of authority or control must be wielded by a foreign State over armed forces fighting on itsbehalf in order to render international an armed conflict which is prima facie internal”91


. For thisspecification of the notion of control the Court, although taking note of a position to the contrary (see

87

Prosecutor v Tádic case (IT- 94-1-A), Appeals Chamber of ICTY, Judgment of 15 July 1999 (hereafter, Tádic case).

88 Tádic case (para 87).





25/44


21

3.1.d.) claimed that IHL has to be supplemented by the general international law rules of Stateresponsibility for it considers that “international humanitarian law does not contain any criteriaunique to this body of law for establishing when a group of individuals may be regarded as beingunder the control of a State, that is as acting as de facto State officials”92

.

a) The Prosecution position in regards to the Nicaragua test

The Prosecution maintained an interesting position since it claimed that the Trial Chamber of thiscase was wrong in applying Nicaragua v USA and claimed that it should have applied instead “theprovisions of the Geneva Conventions and the relevant principles and authorities of internationalhumanitarian law which, in its view, apply a –demonstrable link– test”93. The reason for thisassertion is that Nicaragua v USA dealt with the issue of State responsibility while the issue in thiscase was about individual criminal responsibility. Hence, the Prosecution considered that “theNicaragua test, while valid within the context of State responsibility, is immaterial to the issue of

individual criminal responsibility for –grave breaches–. The Appeals Chamber, with respect, doesnot share this view”94. The Court considered that the relevant issue was preliminary to these twotypes of responsibility: “the conditions on which under international law an individual may be heldto act as a de facto organ of a State”95. The Appeals Chamber asserted that logically these conditionsmust be the same. However, this position is arguable since State responsibility may arise not onlywhen individuals act as de facto organs but also in other circumstances, like when a State exercisescontrol or gives instructions to private individuals, but also for its own acts of inciting or notpreventing the acts of private individuals when the State had a duty to do so. These situations wereanalysed by the ICJ in Nicaragua v USA and different control tests were applied, although the Appeal

Chamber did not share this view of that case either. The Prosecution (and the dissenting opinion of Judge McDonald) argued that in Nicaragua v USA the ICJ “first applied the –agency– test whenconsidering whether the contras could be equated with United States officials for legal purposes, inorder to determine whether the United States could incur responsibility in general for the acts of thecontras [...] the Court then applied the “effective control” test to determine whether the United Statescould be held responsible for particular acts committed by the contras in violation of internationalhumanitarian law”96

.

92

Tádic case (para 98).






26/44


22

The Appeals Chamber considered that this understanding of the case was based on a “misreading”of the case and claimed that “it is unclear whether the Court is propounding “effective control” as analternative test to that of “dependence and control” set out earlier [...] or is instead spelling out therequirements of the same test. The Appeals Chamber believes that the latter is the correctinterpretation”97 . The Appeals Chamber therefore analyses Nicaragua v USA on the basis that the ICJ

only applied a test for determining whether private individuals are acting as de facto organs of aState, and this test involves that the State should issue specific instructions 98. However, a properreading of Nicaragua v USA leads to the position held by the Prosecution and Judge McDonald 99.This has been clearly confirmed by the ICJ in the Genocide Convention case, in which the Court puts alot of emphasis in clarifying that the equation of private individuals with State organs on the basis ofthe strict control test is a “completely separate issue” (borrowing the words of the ICJ) from theattribution of State responsibility on the basis of instructions or control, which should be appreciatedby applying the effective control test100

. In the Genocide Convention case the ICJ was merely reassertingthe validity of the tests it put forward in Nicaragua v USA after its questioning by the AppealsChamber, so it must be taken to give the correct interpretation of that case.

The interpretation that the Appeals Chamber does of Nicaragua v USA and the confusion of the twotests into one101 explain why it claims that “international law does not require that the particular actsin question should be the subject of specific instructions or directives by a foreign State to certainarmed forces in order for these armed forces to be held to be acting as de facto organs of thatState”102


. This denial is correct but it assumes that the ICJ asserted what in fact it did not held, for theICJ never required the issuance of specific instructions for the equation of a group with a State organ.Those instructions were required, as an effective control test for attributing responsibility to a State forthe resulting specific acts of a group, after having denied its characterisation as a de facto organ,

denial which was based not on the lack of specific instructions but on the non-fulfilment of therequirements of complete dependence and complete control which conformed the so-called “strictcontrol” or “agency” test. Therefore, the test set forward by the Appeals Chamber (the overall controltest) is not aiming to replace the effective control test (as it claims to be doing when denying that

98 See Tádic case (para 114).

99See TALMON (2009) p. 507 where Talmon points out that “the Appeal Chamber approach was based on a misreading

of the ICJ’s Nicaragua judgment and a misinterpretation of the rules of custormary international law governing Stateresponsibility […] the Appeals Chamber did not subscribe to the interpretation that had correctly been put forward

by the Prosecution and by Judge McDonald in her dissent at the trial stage”.

100 See Genocide Convention case (para 397).

101 This confusion of both tests is apparent, inter alia, in paras 109 (in fine) and 156.



27/44


23

international law requires specific instructions for considering armed forces as de facto organs of aState and offering its test as an alternative), but rather the strict control test. It is a much moreambitious position for it means setting a lower threshold of control for the characterisation of groupsas de facto organs (responsibility therefore arising under Article 4 ILC Articles) and not the groundingof State responsibility under Article 8 ILC Articles, whose scope is limited to the specific acts

controlled.

b) The Appeals Chamber rejection of the Nicaragua test

“The Appeals Chamber, with respect, does not hold the Nicaragua test to be persuasive”103 andargues this position on the basis of the two following topics: on its inconsistency with the logic ofState responsibility and on its contradiction with judicial and State practice104

- Not consonant with the logic of State responsibility

.

The Appeals Chamber considers that the test put forward by the ICJ in Nicaragua v USA is notconsonant with the rationale that underlies the whole system of State responsibility. It claims that“the principles of international law concerning the attribution to States of acts performed by privateindividuals are not based on rigid and uniform criteria”105. It uses article 8 ILC Articles as exampleand claims that “the rationale behind this rule is to prevent States from escaping internationalresponsibility by having private individuals carry out tasks that may not or should not be performedby State officials [...] States are not allowed on the one hand to act de facto through individuals andon the other to disassociate themselves from such conduct”106


. The Court claimed that attribution inthese cases is based on the requirement of control and claims that the degree of control necessary for

attribution differs according to the facts of each case and not necessarily always there will be a highthreshold. The Court asserts that the law on State responsibility “is based on a realistic concept ofaccountability, which disregards legal formalities and aims at ensuring that States entrusting somefunctions to individuals or groups of individuals must answer for their actions, even when they act

104 It is interesting to note that Judge Shahabuddeen in his Separate Opinion asserts that while he agrees with the

Appeals Chamber that there was an international conflict, he asserts that “I am unclear about the necessity to

challenge Nicaragua (para 5) [...] On the basis of Nicaragua , I have no difficulty in concluding that the findings of theTrial Chamber sufffice to show that the FRY was using force through the VRS against BH, even if it is supposed that

the facts were not sufficient to fix the FRY with responsibility for any delictual acts committed by the VRS. The FRY

and BH were therefore in an armed conflict within the meaning of article 2, first paragraph, of the Fourth Geneva

Convention” (para 14).




28/44


24

contrary to their directives”107

. This statement can readily be shared but in answering for theiractions when an organised group acts contrary to their instructions, State responsibility seems morelogically to arise due to its incitement or support, which is the real own conduct of the State, and notfor conduct of the group beyond its control, for which the group alone should be held accountable.

- At variance with judicial and State practice

The Appeals Chamber also argued that the tests set forward in Nicaragua v USA are not persuasiveclaiming that “the effective control test propounded by the International Court of Justice as anexclusive and all-embracing test is at variance with international judicial and State practice: suchpractice has envisaged State responsibility in circumstances where a lower degree of control thanthat demanded by the Nicaragua test was exercised”108

. The Chamber considered that test to beappropriate for cases of individuals or disorganised groups but not in cases that dealt with militaryor paramilitary groups.

First, it is important to point out that this criticism of Nicaragua v USA departs from the considerationthat it set forward the effective control test as “an exclusive and all-embracing test”. However, as setout above, the ICJ in fact set forward two tests, and the effective control test was only applied afterhaving denied attribution on the basis of the so- called agency test. This clarification dilutes most ofthe criticism towards Nicaragua, since the ICJ did not require the issuance of specific instruction for agroup to be considered a de facto organ, and all the criticisms arguing in that sense are thereforedeemed to fail.

The Chamber enumerated many cases that allegedly contradict the need of specific directives to be

considered as acting on behalf of the State. However, apart from the confusion amongst both tests,most cases set out in the judgment assert State responsibility on the basis of characterisation as de facto organs (which obviously does not require the issuance of specific instructions), like the Stephenscase. Others merely attribute responsibility on different basis which are not relevant for the equationwith State organs or the determination of the level of control required by article 8 ILC Articles. Thisis the case of the United States Diplomatic and Consular Staff in Tehran case, in which it was concededthat the group of students did not initially act on behalf of Iran but it was held responsible for itsown acts: for failing to prevent the attack, for failing to put an end to it, and finally for publiclyapproving and endorsing the action ex post facto. Therefore, its relevance for excluding the validity ofthe tests put forward by the ICJ in Nicaragua v USA is at most very limited.




29/44


25

c) Three tests in general international law: specifically, the overall control test

The Appeals Chamber claims that depending on the facts, different levels of control are to be appliedwhen private individuals or groups can be considered de facto State organs: “where the question atissue is whether a single private individual or a group that is not militarily organised has acted as a

de facto State organ when performing a specific act, it is necessary to ascertain whether specificinstructions concerning the commission of that particular act had been issued by the State [...] Bycontrast, control by a State over subordinate armed forces or militias or paramilitary units may be ofan overall character (and must comprise more than the mere provision of financial assistance ormilitary equipment or training). This requirement, however, does not go so far as to include theissuing of specific orders by the State, or its direction of each individual operation”109

.

Regarding the overall control test set forward by the Appeals Chamber of the ICTY for theattribution of responsibility for equating militarily organised groups with State organs it claims that:“it must be proved that the State wields overall control over the group, not only by equipping andfinancing the group, but also by coordinating or helping in the general planning of its militaryactivity”110

. Therefore, the overall control test propounded lowers the threshold of control requiredfor attributing responsibility to the State, but this occurs not for not requiring the issuing of specificinstructions or control over the specific operation (which was not required either by the ICJ to equatea group with a State organ) but due to the lowering of threshold by the overall control, which is saidthat must go beyond financial and military assistance or training and include the coordination orhelp in the planning of its military activity. These requirements are below the strict control test whichthe ICJ applies to equate a group with a State organ: the ICJ requires that there is a relation ofcomplete dependence of the group, the State must correspondingly have complete control over it,

that potential for control must have been actually used and have extended to all fields of its activity.

The Appeals Chamber pointed out that in addition to the “test of overall control applying to armedgroups and that of specific instructions (or subsequent public approval), applying to singleindividuals or militarily unorganised groups. The Appeals Chamber holds the view thatinternational law also embraces a third test. This test is the assimilation of individuals to State organson account of their actual behaviour within the structure of a State (and regardless of any possiblerequirement of State instructions”111


. The Court does not elaborate much on this test but cites somecases in which individuals acting as if they were state organs are assimilated to them. However, thiscan be reconducted to a relation of complete dependence and complete control or the issuance of

instructions. Otherwise, it is difficult to see how the State would have consented to that privatepersons acting in their behalf so as to be able to consider their conduct an act of that State.




30/44


26

Responsibility could be based on these cases also on the basis of article 9 ILC Articles if those personswhere exercising elements of the governmental authority in the absence or default of the officialauthorities and in circumstances such as to call for that exercise. In any other case, the State could beheld responsible for its own conduct for failing to prevent a private person from acting like if hewere in authority when he was not.

d) International humanitarian law as a lex especialis?

The Appeals Chamber, when analysing the degree of control by a foreign State to convert intointernational a prima facie internal conflict, first analysed IHL, and concluded that it “does not containany criteria unique to this body of law for establishing when a group of individuals may be regardedas being under the control of a State [...] Consequently, it is necessary to examine the notion ofcontrol by a State over individuals laid down in general international law”112. However, the Courtmade reference in a footnote to the existence of “another approach taken to the question ofimputability in the area of international humanitarian law. The Appeals Chamber is referring to theview whereby by virtue of Article 3 of the IVth Hague Convention of 1907 and Article 91 ofAdditional Protocol I, international humanitarian law establishes a special regime of Stateresponsibility; under this lex especialis States are responsible for all acts committed by their –armedforces– regardless of whether such forces acted as State officials or private persons. [...] This opinionwas authoritatively set forth by some members of the International Law Commission (“ILC”)(Professor Reuter113 [...] Professor Ago114 [...] This view has also been forcefully advocated in thelegal literature”115. However, the Court considered that “even if this approach is adopted, the test ofcontrol as delineated by this Chamber remains indispensable for determining when individuals who,

formally speaking, are not military officials of a State may nevertheless be regarded as forming partof the armed forces of such a State”116

.

This approach which considers IHL as a lex especialis is a really interesting one since it may have far-reaching consequences. Article 55 ILC Articles establishes that “these articles do not apply where


113 “Professor Reuter observed that “it was now a principle of codified international law that States were responsible

for all acts of their armed forces” (Yearbook of the International Law Commission, 1975. Vol. I. p.7, para. 5” (cited in

footnote 117 of the Tádic case).

114 “Professor Ago stated that the IVth Hage Convention of 1907 “made provision for a veritable guarantee covering

all damage that might be caused by armed forces, whether they had acted as organs or as private persons (ibid, p 16,

para 4)” (cited in footnote 117 of the Tádic case).

115 Tádic case (footnote 117).

116 Tádic case(footnote 117).


31/44


27

and to the extent that the conditions for the exercise of an internationally wrongful act or the contentor implementation of the international responsibility of a State are governed by special rules ofinternational law”. The ILC Commentary to the Articles points out that Article 55 “reflects themaxim lex especialis derogat legi generali. Although it may provide an important indication, this isonly one of a number of possible approaches towards determining which of several rules potentially

applicable is to prevail or whether the rules simply coexist. Another gives priority, as between theparties, to the rule which is later in time”117 . The consequences of the application of this maxim arenot straightforward, since the notion of lex especialis covers a wide range of rules118. The ILCCommentaries clarify that “article 55 is designed to cover both “strong” forms of lex especialis,including what are often referred to as self-contained regimes, as well as “weaker” forms such asspecific treaty provisions on a single point”119

.

The position of international tribunals seems to be reluctant in accepting the existence of a lexespecialis as to depart from the general rules of state responsibility. The ICTY did not consider IHL aslex especialis, and claimed that even if the contrary approach was taken, there would be still need forthe test for determining when a group can be considered as part of the armed forces of a State, testwhich would be based on the general rules of state responsibility. In the Genocide Convention case, theICJ rejected the Applicant’s claim which asserted that because of the “particular nature” of genocidethe effective control test should be analysed not in relation with specific acts but as a with all of themas a whole. The ICJ held that “in the absence of a clearly expressed lex especialis”120 the Court is not

justified in departing from the general rules. This restrictive view of the existence and scope of lexespecialis is consonant with what Simma and Pulkowski call an universalistic concept of internationallaw (in contrast with a particularistic view which regards international law “as the sum total ofloosely interrelated systems”121

117 CRAWFORD (2002) p. 306).

), adherents to which “choose as their starting point the perspective

118 For an interesting discussion about the lex specialis maxim and its “major built-in problems” see: SIMMA & PULKOWSKI (2006) pp. 483-529. In this article the authors set out the difficulties in determining when a rule can be considered

more special than another, the extension of that specialness and how the consequences of these considerations should

b

attribution- state responsibility

Documents